First Amendment Protection for Panhandling to be decided By Massachusetts Supreme Judicial Court

The Massachusetts Supreme Judicial Court is expected to hear Massachusettts Coalition for the Homeless v. City of Fall River, this Monday, November 2nd regarding the controversial Massachusetts statute “17A.” This statute basically forbids soliciting from vehicles on public ways.  Although panhandling is not explicitly mentioned in the statute, in March of 2019, the Fall River Police Department filed over 150 criminal complaints under the statute, most of which targeted the homeless.

This case is being brought by members of the Massachusetts Coalition for the Homeless. The named plaintiffs in this case, John Correira and Joseph Treeful are both members of the Massachusetts Coalition for the Homeless. Correira and Treeful are both low-income residents of Fall River.  Both have experienced homeless and both rely on panhandling as a source of income. Because of this, they have been subject to combined forty-three criminal complaints, and both have been incarcerated in connection with the complaints.

Panhandling is a prevalent issue that has been around since Colonial times. In light of stagnant wages, high rent, the opioid crisis, and the COVID-19 pandemic, panhandling is not going to disappear anytime soon. With the current state of tragedy the world is in, many individuals are going to find themselves at rock bottom, without a steady income to fall back on.

PANHANDLING IS PROTECTED SPEECH UNDER THE 1ST AMENDMENT

Although there is no bright-line rule, it seems that panhandling is protected by the First Amendment, and there are not many restrictions that can be placed on it following the Supreme Court’s decision in Reed v. Town of Gilbert.  In Reed, the Court held that a restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive or justification.  Because meeting strict scrutiny is a very high-bar, most content-based regulations will fail.

The First Amendment’s protection of free speech should be extended to panhandling.  Because regulations that target panhandling also typically target speech based on its content, this falls under the category of protected speech.  And, like other First Amendment rights, content-based restrictions on such speech are subject to strict scrutiny.

Massachusetts has previously held that certain types of solicitation is protected speech. The Supreme Judicial Court has held in Benefit v. City of Cambridge, 424 Mass. 918, 922 (1997), that peaceful solicitation of charity for personal use is constitutionally protected speech. The reasoning in this case should be extended to panhandling in general.

Statue 17A seems unlikely to pass strict scrutiny because it is not narrowly tailored to serve a compelling government interest. 17A criminalizes “signaling” a motorist on a public way, “causing the stopping” of a motor vehicle, or “accost[ing]” a driver in a stopped car but only when done “for the purpose of” soliciting donations or selling some, but not all, items.  This statute is underinclusive.  If the purpose of this statute is to forbid solicitation from vehicles because it is distracting or dangerous, then it should not allow some forms of roadside solicitation and not others.  This type of content-based distinction that is profited by the First Amendment.  For example, the City cannot forbid solicitation for money by the homeless without prohibiting solicitation by the fire department.

A case like this can be distinguished from cases that deal with aggressive panhandling.  For example, in Thayer v. City of Worcester, the court found a ban on panhandling on traffic medians as overbroad to achieve the government’s purpose.  Any concerns that the town had concerning panhandling concerning public safety could be addressed under existing criminal law.  This sort of aggressive panhandling comes out of the world of protected speech and into the world of criminal actions.

Nobody enjoys panhandling. The person doing it wishes they had a different source of income. The person being asked often times feels intimidated, and in the worst of cases, unsafe.  However, the government has no place in the world of one person passively asking another for help.  Sweeping laws that attempt to ban panhandling can effectively muzzle individuals just for being impoverished.

The criminalization of homelessness is cruel and ineffective.  Laws like Section 17A fail to address underlying causes and instead punish those experiencing homelessness for their poverty.  The First Amendment protects all kinds of vile and disturbing speech, and just because panhandling is typically a nuisance does not mean it is undeserving of protection.  Creating laws that silence people because their speech makes others uncomfortable is exactly what the First Amendment seeks to prevent.  We are anticipating the Supreme Judicial Court’s clarification on this matter, and hopefully, they will find that Massachusetts statute 17A is Unconstitutional limitation on the right of Free Speech.

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